The claimant applied for disabled widow's insurance benefits on the
worker's earnings record, but the Secretary denied her application because
the claimant did not meet the 9-month duration-of-marriage requirement in
42 U.S.C. 416(c). This denial was upheld by the district court. The
claimant then appealed to the U.S. Court of Appeals for the First Circuit.
She argued that, because she and the worker had cohabited for 20 years
prior to the date of their ceremonial marriage, their cohabitation had
transformed their relationship into a legal marriage well before the
9-month period. The court of appeals noted that Puerto Rico does not
recognize common-law marriages and that the requirements for establishing
a valid marriage in Puerto Rico are set forth in Article 69 of the Civil
Code, 31 L.P.R.A. § 231. The court found that, in this case, the
requirements of Article 69 were clearly not met 9 months prior to the
worker's death. The court further found that the claimant's constitutional
"equal protection" attack on the 9-month duration-of-marriage requirement
was invalid under Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457,
45 L.Ed.2d 522 (1975), and Mathews v. de Castro, 429 U.S. 181, 97
S.Ct. 431, 50 L.Ed.2d 389 (1976). The claimant also contended that, since
she was the worker's concubine, she had a right under Puerto Rican law to
inherit from the worker's estate as his widow, and she should be deemed to
be the widow of the worker under 42 U.S.C. 416(h)(1)(A). The court of
appeals found that, under Puerto Rican law, a concubine of a worker has a
right to a share of the property acquired during the period of concubinage
but does not have a right to inherit a widow's share of the deceased
worker's intestate personal property. Therefore, the claimant could not be
deemed to be the widow of the worker under 42 U.S.C. 416(h)(1)(A) by
application of the law of Puerto Rico on intestate succession. In
upholding the district court's decision affirming the Secretary's denial
of this claim for widow's benefits, the court of appeals held that
the claimant was not entitled to benefits as the disabled widow of the
worker.

BREYER, Circuit Judge:

Appellant Esther Ayuso Morales sought Social Security disability benefits
based upon her status as the "widow" of the insured employee Honorio
Montanez Figueroa. Under 42 U.S.C. §
416(c)[1] to qualify as a
"widow" a woman must have been married for at least nine months at the
time of her husband's death. Appellant's marriage took place within the
nine-month period. Benefits were denied.

On appeal, she urges that she is nonetheless eligible because she
cohabited with her husband for twenty years prior to their marriage. She
argues that cohabitation transformed her relationship into a legal
marriage well before the nine-month period. She adds that, in any event,
under 42 U.S.C. § 416(h)(1)(A) an applicant is a widow if she would,
"under the laws . . . [of Puerto Rico] determining the devolution of
intestate personal property, have the same status . . . as a wife . . .
[or] widow. . . ." See generally, Rombauer, Marital Status and
Eligibility for Federal Statutory Income Benefits: A Historical
Survey, 52 Wash.L.Rev. 227, 257 et. seq. (1977). She claims
that the concubinage law of Puerto Rico gives her such status.

We cannot accept appellant's first argument. We realize that some common
law jurisdictions recognize non-ceremonial or "common law marriages."
These marriages are created by the consent of the parties as any other
contract. F.W. Kuchlar, Law of Engagement and Marriage 1-5 (2d ed.
1978); see O.E. Koegel, Common Law Marriage and its Development
in the United States (1922). But common law marriages are not
recognized in Puerto Rico. The requisites of a valid marriage in Puerto
Rico are set forth in Article 69 of the Civil Code, 31 L.P.R.A. §
231.[2] Included among these
requisites is the "[a]uthorization and celebration of a matrimonial
contract according to the forms and solemnities prescribed by law." In the
absence of these forms and solemnities, there can be no marriage.
Rivera v. District Court of San Juan, 58 P.R.R. 352, 354 (1941);
Vazquez Bote, Notas sobre el matrimonio en derecho puertoriqueno,
49-56 Rev. P.R. 491, 493-94, 510-12 (1973-75). E. Lalaguana Dominguez,
Estudios de derecho matrimonial 244-45 (1962).

It is clear that the requirements of Article 69 were not met nine months
before appellant husband's death. And it is equally clear that Article 69
does not contemplate exceptions. In fact, when the Puerto Rico Legislative
Assembly once sought to recognize some common-law type marriages, it felt
it had to enact a special law for that purpose. That law, the Act of March
12, 1903, defined "natural marriage" and established a procedure to
legitimize and register such
unions.[3] Acts and Resolutions
of the First Session of the Section Legislative Assembly 116-118 (1903).
But it was short-lived. The law of 1903 was repealed on March 7, 1906.
Acts and Resolutions of the Second Session of the Third Legislative
Assembly 106 (1906). And no other similar statute has been enacted in the
Commonwealth since then. Consequently, we believe the Commonwealth courts
would conclude that appellant was not legally married to Mr. Montanez
Figueroa, the deceased employee, nine months before his death.

We turn next to appellant's second argument -- that under the law of
Puerto Rico she, as a "concubine," has the status of a widow for purposes
of disposition of intestate property. She asserts that she lived together
with the insured employee "for more than twenty years as husband and
wife." And, this fact, she claims, is sufficient.

We do not doubt that appellant has asserted sufficient facts to invoke
the civil law relationship of "concubinage more uxorio." That
relationship exists when a man and a woman lead a common life together
permanently, as in an ordinary marriage -- when only the formalities of
marriage are missing. See Puig Pena, Las uniones maritales de hecho, 33
Revista de Derecho Privado 1086-89 (1949). Nor do we doubt that, after
a long period of hostility to this relationship stemming from the Council
of Trent (1545-63), see Munoz Morales, El concubinato en Puerto
Rico, 17 Rev.Jur.U.P.R. 160, 164 (1947); Puig Pena, op. cit at
1090-91, n.13 (bis), the Hispanic and other civil law systems have treated
this relationship with increasing liberality. Both in Europe and in Latin
America provisions have been enacted to remove some of the severe
inequities previously suffered. See Puig Pena, op. cit. at 1092-93;
Munoz Morales, op. cit. at 165-72; Note, Analisis para unal
legislacion del concubinato more uxorio en Puerto Rico, 49
Rev.Jur.U.P.R. 317, 319-27 (1980); Arraras, Concubinage in Latin
America, e J.Fam.L. 330, 334 et seq. (1963). Thus, for example,
Puerto Rico's Workmen's Accident Compensation Act specifically allows a
"concubine" to receive certain benefits. 11 L.P.R.A. § 3 ¶ 5(2). See
Ortega v. Industrial Commission of Puerto Rico, 73 P.R.R. 184
(1952);Calderon v. Industrial Commission of Puerto Rico, 64 P.R.R.
702 (1945). Its auto accident compensation law (Automobile Accident Social
Protection Act) makes her eligible for other benefits. 9 L.P.R.A. §
2052(3). Her family may well be eligible for public housing as if it were
legally constituted through marriage. 17 R.R.P.R. § 22a-9(a)(1) (1971).
The law governing social security for chauffeurs provides death benefits
for "concubines." 29 L.P.R.A. § 687. And, in 1947, the Supreme Court of
Puerto Rico, reversing an earlier decision, guaranteed a "concubine"
rights in the property acquired during "concubinage." Torres v.
Roldan, 67 P.R.R. 342 (1947), overruling Morales v. Cruz Velez,
34 P.R.R. 796 (1926). Given the increasing legal recognition of the
"concubinage" relation, we suspect there is no important policy reason for
depriving the appellant of a widow's federal social security benefits.

Nonetheless, we do not believe that appellant can qualify under 42 U.S.C.
§ 416(h)(1)(A), for Puerto Rico's law does not treat a "concubine" like a
"widow" for purposes of "determining the devolution of intestate personal
property." A "concubine" is now entitled to a share of all property
acquired during the concubinage, Torres v. Roldan, 67 P.R.R. at
345-46. But, those rights flow from ordinary principles of property and
equity, not of inheritance. That is to say, a concubine's
rights over the property acquired during the concubinage can be
established by proving that such property was acquired following "(1) an
express" or "(2) an implied agreement" among the partners or (3) as a way
"to prevent an unjust enrichment" of one of the parties. Danz v. Suau,
82 P.R.R. 591, 598-99 (1961); Cruz v. Heirs of Landrau Diaz, 97
P.R.R. 563, 570-71 (1969); Caraballo Ramirez v. Acosta, 104 P.R.R.
474, 480-81 (1975). See Carrasco v. Secretary of Health, Education and
Welfare, 628 F.2d 624, 626 n.1 (1st Cir.), reh. denied, 638
F.2d 1 (1980). Her rights are typical of those governing property
relationships among partners, see, e.g., Civil Code, Art. 1580, 31
L.P.R.A. § 4351, or among "co-owners," Civil Code, Arts. 326 et
seq.,31 L.P.R.A. §§ 1271 et seq. Similar rules of property also
account for the fact that a widow ordinarily obtains a half interest in
the property acquired during marriage. Civil Code, Arts. 1895 et seq.,
31 L.P.R.A. §§ 3621 et seq.

The inheritance rights of a widow, however, concern the
other portion of the property acquired during marriage; in fact
they concern all that property that under the law of property belongs not
to her, but to the deceased. A widow inherits a life estate in that
property, Civil Code, Art. 761, 31 L.P.R.A. § 2411, or, inherits an
absolute title if the deceased spouse left no descendants, ascendants or
collaterals up to the fourth degree, Civil Code, Arts. 903-9, 31 L.P.R.A.
§§ 2671-7. The "concubine," however, inherits nothing. She has no such
interest in her partner's estate. In order to be a spouse entitled to an
interest in the deceased spouse's property (including the deceased
spouse's half of the property acquired during marriage)

"there must exist a valid marriage producing civil effects"
(emphasis in the original).

This difference in treatment for purposes of property devolution is
significant enough to deprive appellant of the benefits of 42 U.S.C. §
416(h)(1)(A). Nor can the fact that appellant was a widow at death bring
her back within that section for nine months of lawful marriage are
required. Her constitutional "equal protection" attack on the nine-month
requirement is invalid under Weinberger v. Salfi, 422 U.S. 749, 95
S.Ct. 2457, 45 L.Ed.2d 522 (1975), and Matthews v. De Castro, 429
U.S. 181, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976) which upheld similar
distinctions. Thus, we cannot, under the social security statutes, allow
recovery.

Affirmed

[1] "The term 'widow'. . . means
the surviving wife of an individual, but only if . . . she was married to
him for a period of not less than nine months immediately prior to the day
on which he died. . . ."

Section 1. -- That whenever a man and a woman publicly live
together in the same domicil after the manner of husband and wife and a
child shall be born to them as a result thereof, such union, if the
parties thereto have the legal requisites and capacity to contract
marriage and if no lawful impediment exists, shall for all purposes be
held and deemed to be a lawful marriage having all the civil effects of
any other lawful marriage; and any subsequent marriage by either of the
parties to such union shall be bigamous and shall be punishable as such in
accordance with the provisions of the penal code.

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